Delhi District Court
Hdfc Bank Limited vs Sanjeev Sharma on 5 August, 2016
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In the Court of Ms. Sonam Singh, Civil Judge-05, Central District, Tis
Hazari Courts, Delhi
New Suit No. 599341/16
Suit No. 1045/14
Unique ID No. 02401C0379172013
HDFC Bank Limited
Having Branch Office at,
Express Building, 2nd Floor,
Bahadur Shah Jaffar Marg,
ITO, Delhi-110002
Represented through its,
Authorized Representative Mr. Rakesh Shukla ... Plaintiff
Versus
Sanjeev Sharma
E-68 Oriental Home,
Sushant Lok-3, Sector-57,
Gurgaon-122002 ...Defendant
Date of institution: 01.08.2013
Date of final decision: 05.08.2016
CS No. 599341/16 HDFC Bank Ltd Vs. Sanjeev Sharma
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Ex-parte Judgment
1.The present suit is for recovery of Rs. 2,39,712.93/- filed by the Plaintiff and against the Defendant.
Plaintiff's case as per the Plaint
2. The Plaintiff has made following the averments in its plaint:
a) That the Plaintiff is a scheduled commercial bank, within the meaning of term defined, under the Reserve Bank of India Act, 1934 incorporated under relevant provisions of the Companies Act 1956, having its registered office at HDFC Bank House, Senapati Bapat Marg, Lower Parel (West), Mumbai-400013 and inter alia a branch office, at Express Building, 2 nd Floor, Bahadur Shah Jaffar Marg, ITO, Delhi-02. The Plaintiff is engaged in the business of banking and finance, as permissible under relevant provisions of Banking Regulation Act 1949, subject to guidelines of the Reserve Bank of India promulgated from time to time.
b) That Mr. Ankush Saini, Manager is duly authorized on behalf of applicant bank vide power of Attorney dated 16.05.2013 and is competent to file, sign, verify and institute the present suit and follow up the legal proceedings.
c) That the Defendant made a representation for availing a loan against CS No. 599341/16 HDFC Bank Ltd Vs. Sanjeev Sharma 3 vehicle bearing registration number HR26BG05534, chasis number MA3EAA61S01759775, engine number F8DN4523598 under the product name of Auto Loan and Plaintiff bank believing the representation to the true and relying upon the same sanctioned and consequent to execution of agreement bearing reference no. 17442336 disbursed a loan of Rs. 2,50,000/-
to the Defendant.
d) That the Defendant in terms of amortization/repayment schedule inscribed in the agreement, undertook to repay the said loan and monthly installments of Rs. 5435/- and to secure repayment of loan, hypothecated subject property, aforementioned in favour of the Plaintiff.
e) That the Defendant undertook to comply with the terms of subject agreement which is in the form of standard form contract containing provisions signifying trade usage and practice prevalent in the said field of trade/commerce.
f) That the terms of the agreement and its amortization schedule is the basis for fixing monthly installments over a period of time or one shot payment as the case may be.
g) That the agreement provides for late payment charges in the form of liquidated damages in the event of omission to pay installments on date due, which even otherwise has sanction of practice and trade usages in that field of commerce/activities.
CS No. 599341/16 HDFC Bank Ltd Vs. Sanjeev Sharma 4
h) That agreement provides for other charges in the nature of cheque bouncing charges and swapping of cheque charges as and when occasioned and warranted by exigencies.
i) That in terms of the subject agreement, non-payment of installment or any amount payable there under, or parting with the possession of secured asset will constitute event of default, entitling Plaintiff to take possession of the secured asset without intervention of any court or tribunal, sell that off and appropriate sale proceeds towards satisfaction of outstanding dues.
j) That after availing the loan facility and enjoying the possession of subject property, Defendant has failed to adhere to financial discipline and committed willful default.
k) That despite request, follow up, and service of notice of demand, Defendant has failed to adhere to terms of the subject agreement and further neglected to pay heed to the request of Plaintiff's officers and representatives to regularize the subject account and thereby constrained Plaintiff bank to terminate subject agreement, recall the facility and called upon Defendant to pay the foreclosure value of subject account as on Rs. 2,39,712.93/- within seven days of notice vide termination/loan recall notice dated 27.06.2013.
l) That original loan documents of the subject account were destroyed in accidental fire at Plaintiff's file storage system/place and the same has been reported to concerned police station. Plaintiff proposes to prove its case by leading secondary evidence, with the permission of the Hon'ble Court.
CS No. 599341/16 HDFC Bank Ltd Vs. Sanjeev Sharma 5
m) That the Plaintiff maintains proper books of account during the usual and ordinary course of its day to day business. As per the statement of account, Plaintiff is entitled to recover a sum of Rs. 2,39,712.93/- from Defendant as on dated 26.06.2013.
3. It is pertinent to observe that despite service of summons served upon the Defendant by way of publication, Defendant had failed to appear before this court and suit was proceeded ex-parte against Defendant vide order dated 10.03.2015.
4. Plaintiff in support of his case has placed on record affidavit in evidence Ex PW-1/A of the Manager of the HDFC Bank, namely,Sh. Ankit Baweja and relied upon the following documents:
Sr. No. Exhibits Nature of documents
1. Ex. PW-1/1 (OSR) Power of Attorney dated 11.02.2016
2. Ex. PW-1/2 Disbursal letter dated 02.04.2013
3. Ex. PW-1/3 Repayment Schedule dated
02.04.2013
4. Ex. PW-1/4 Disbursement advice cum delivery
order dated 18.11.2010
5. Ex. PW-1/5 Copy of the Registration Certificate
(original in issued by the Registration Authority.
possession of
Defendant)
6. Ex. PW-1/6 and Ex. Copy of legal notice dated 27.06.2013 PW-1/7 along with Postal Receipts.
CS No. 599341/16 HDFC Bank Ltd Vs. Sanjeev Sharma 6
7. Ex.PW-1/8 Copy of FIR (Original/certified copy of FIR seen and returned)
8. Ex.PW1/9 (Colly) Certified copy of account statement and foreclosure along with certificate under Bankers Book Evidence Act.
5. The said witness was duly examined in chief. Thereafter, Plaintiff closed his evidence, vide separate statement.
6. I have heard Ld. Counsel for the Plaintiff and perused the case file carefully.
7. The only point of determination in the present suit is whether the Plaintiff is entitled to recover the sum of Rs.2,39,712.93/- along with interest from 26.06.2013 till date, as sought for, by him from the Defendant.
8. On perusal of the averments made in the plaint and unchallenged testimony of the Authorized Representative of the plaintiff bank vide affidavit Ex. PW-1/A, grant of an auto loan of a sum of Rs.2,50,000 to the Defendant stands proved vide loan documents i.e. Ex. PW-1/2 which is the copy of the Disbursal letter dated 02.04.2013, Ex. PW-1/3 i.e. Repayment Schedule dated 02.04.2013 as per which loan was to be repaid in 60 equated monthly installments of Rs. 5435/- each and which gives the details of the course and CS No. 599341/16 HDFC Bank Ltd Vs. Sanjeev Sharma 7 indicates that the course was to commence on 07.12.2010. Ex. PW-1/4 which is Disbursement advice cum delivery order dated 18.11.2010 and Ex. PW-1/5 i.e. Copy of the Registration Certificate issued by the Registration Authority show that loan was advanced for a car, bearing registration number HR26BG05534 to the Defendant. Further Ex. PW-1/6 i.e. legal notice dated 27.06.2013 was also sent and it was also not replied by the Defendant despite service (with service being presumed under section 27 of the General Clauses Act). Ex.PW-1/8 which is the Copy of FIR also shows that the original loan documents of the loan agreement entered between the parties dated 18.11.2010 could not be produced, as there was an accidental fire at the place of storage and thus, by way of secondary evidence, the Plaintiff has proved its case. Further, the submissions of ld. counsel for the Plaintiff are further substantiated by Ex.PW1/9 (Colly) which is the Certified copy of account statement and foreclosure along with certificate under Bankers Book Evidence Act. As the testimony of PW-1 has remained unrebutted and unchallenged, I have no reasons to disbelieve the same.
9. On a perusal of the entire available record and the unrebutted testimony of PW1 and the documents filed by the plaintiff bank which are presumed to be true and correct in view of the testimony of PW1 and the factum that the Defendant has not chosen to contest the suit despite due service, the claim of the plaintiff bank as averred in the instant suit stands established and the suit of the plaintiff bank is thus decreed in favour of the plaintiff bank against defendant for a sum of Rs. 2,39,712.93 Further, Plaintiff has also sought interest from 26.06.2013., this court is of the view that @ 12 % will serve the interest of justice. As such plaintiff bank is entitled to recover CS No. 599341/16 HDFC Bank Ltd Vs. Sanjeev Sharma 8 from the defendant remaining sum of sum of Rs. 2,39,712.93 along with interest @ 12% per annum from 26.06.2013 till full realization of the amount. Plaintiff Bank is also entitled to the costs of the suit. Suit of the plaintiff is decreed.
10. An application under Order XL CPC read with Section 151 CPC had been filed on behalf of the Plaintiff along with the plaint seeking appointment of receiver. Submissions in this regard were heard. Record perused. Sh. Mohan Madan, Collection Manager of the plaintiff bank is hereby appointed as Receiver to repossess the vehicle bearing registration number HR26BG05534, chasis number MA3EAA61S01759775, engine number F8DN4523598 and Maruti Alto LXI make.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance. Pronounced in the open Court on 05.08.2016.
( Sonam Singh ) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment is consisted of 8 pages and each page is signed by me.
CS No. 599341/16 HDFC Bank Ltd Vs. Sanjeev Sharma
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New Suit No. 599341/16
Old Suit No. 1045/14
05.08.2016
Present: None.
Vide my separate ex-parte judgement of even date, the suit of the Plaintiff bank stands decreed for a sum of Rs. 2,39,712.93/- along with interest @ 12% per annum from 26.06.2013 till full realization of the amount. Plaintiff is also entitled to the costs of the suit.
Further, the application under Order XL CPC read with Section 151 CPC filed on behalf of the Plaintiff also stands allowed.
Sh. Mohan Madan, Collection Manager of the plaintiff bank is hereby appointed as Receiver to repossess the vehicle bearing registration number HR26BG05534, chasis number MA3EAA61S01759775, engine number F8DN4523598 and Maruti Alto LXI make.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
( Sonam Singh ) Civil Judge-05, Central District Tis Hazari Courts, Delhi 05.08.2016 CS No. 599341/16 HDFC Bank Ltd Vs. Sanjeev Sharma